Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Overtime for casuals
(AM2017/51)

4 yearly review of modern awards – overtime for casuals – directions – exposure drafts

[1] As part of the conduct of the continuing 4 yearly review of modern awards, on 4 December 2017 the Full Bench allocated to this matter (Hatcher VP, Kovacic DP and Bull DP) issued a statement 1 which listed 108 modern awards in which the Commission’s awards research team had identified a potential ambiguity as to the nature of casual employees’ entitlement to overtime penalty rates. The listed awards were considered to be ambiguous as to one or more of the following three matters:

(1) whether casual employees had any entitlement to overtime rates;

(2) the circumstances in which overtime rates were payable to casual employees; or

(3) the rate at which the overtime rate was payable to casual employees (including whether the casual loading was payable in addition to the overtime rates and, if it was, whether it was added on a cumulative or compounding basis.

[2] At the directions hearings before us on 12 July 2019 and 29 July 2019, interested parties advised that they were in agreement as to the meaning and effect of the current casual overtime provisions in the following awards, and no modification of the exposure drafts for those awards was required:

Electrical, Electronic and Communications Contracting Award 2010

Passenger Vehicle Transportation Award 2010

Vehicle Manufacturing, Repair, Services and Retail Award 2010

[3] Written submissions were received from parties with respect to the following 14 awards, and the parties agreed that the outstanding issues concerning those awards could be determined on the basis of those written submissions:

Aboriginal Community Controlled Health Services Award 2010

Aged Care Award 2010

Dredging Industry Award 2010

Local Government Industry Award 2010

Marine Tourism and Charter Vessels Award 2010

Marine Towage Award 2010

Medical Practitioners Award 2010

Nurses Award 2010

Pharmacy Industry Award 2010

Port Authorities Award 2010

Ports, Harbours and Enclosed Water Vessels Award 2010

Professional Diving Industry (Industrial) Award 2010

Professional Diving Industry (Recreational) Award 2010

Stevedoring Industry Award 2010

[4] The decision of the Full Bench concerning these awards will be issued shortly.

[5] A decision issued by the Full Bench on 8 October 2019 2 resolved outstanding issues pertaining to the following 12 awards:

Alpine Resorts Award 2010

Cleaning Services Award 2010

Corrections and Detention (Private Sector) Award 2010

Dry Cleaning and Laundry Industry Award 2010

Educational Services (Schools) General Staff Award 2010

Educational Services (Teachers) Award 2010

Hospitality Industry (General) Award 2010

Miscellaneous Award 2010

Rail Industry Award 2010

Registered and Licensed Clubs Award 2010

Restaurant Industry Award 2010

Security Services Industry Award 2010

[6] An issue arising in connection with the Ambulance and Patient Transport Industry Award 2010 was also resolved in the 8 October 2019 decision, but there may be a further issue outstanding in relation to this award as identified in paragraphs [27]-[30] of the decision. Draft determinations to give effect to the decision will shortly be published for comment.

[7] The remaining awards have been the subject of discussions between the parties. At a directions hearing before me on 11 October 2019, the parties in attendance reported to the progress of these discussions. In respect of the following 35 awards (first category), the parties have reached an agreement as to the meaning of the awards in relation to the three matters identified in paragraph [1] above:

Airline Operators Ground Staff Award 2010

Asphalt Industry Award 2010

Building and Construction General On-Site Award 2010

Cement and Lime Award 2010

Cemetery Industry Award 2010

Concrete Products Award 2010

Cotton Ginning Award 2010

Electrical Power Industry Award 2010

Food, Beverage and Tobacco Manufacturing Award 2010

Funeral Industry Award 2010

Gardening and Landscaping Services Award 2010

Gas Industry Award 2010

Hair and Beauty Industry Award 2010

Higher Education Industry - General Staff Award 2010

Horse and Greyhound Training Award 2010

Horticulture Award 2010

Hydrocarbons Industry (Upstream) Award 2010

Joinery and Building Trades Award 2010

Local Government Industry Award 2010

Manufacturing and Associated Industries and Occupations Award 2010

Mobile Crane Hiring Award 2010

Nursey Award 2010

Pastoral Award 2010

Pest Control Industry Award 2010

Premixed Concrete Award 2010

Quarrying Award 2010

Racing Clubs Event Award 2010

Racing Industry Ground Maintenance Award 2010

Seafood Processing Award 2010

Silviculture Award 2010

Storage Services and Wholesale Award 2010

Sugar Industry Award 2010

Surveying Award 2010

Waste Management Award 2010

Wine Industry Award 2010

[8] It will be necessary for the relevant parties to identify whether the exposure drafts for the first category of awards reflect the commonly-understood position or whether any changes are required. The attached directions establish a timetable by which this is to be done. The Full Bench will separately confirm for itself that the agreed position is consistent with the current text of each award.

[9] In respect of the following awards, the parties have identified that there is a disagreement about the meaning and effect of the casual overtime provisions (if any) in the following 11 awards (second category):

Aircraft Cabin Crew Award 2010

Black Coal Mining Industry Award 2010

Broadcasting, Recorded Entertainment and Cinemas Award 2010

Contract Call Centres Award 2010

Labour Market Assistance Industry Award 2010

Oil Refining and Manufacturing Award 2010

Telecommunications Services Award 2010

Textile, Clothing, Footwear and Associated Industry Award 2010

Transport (Cash in Transit) Award 2010

Water Industry Award 2010

Wool Storage, Sampling and Testing Award 2010

[10] The identified issues with respect to the second category of awards, with the exception of the Aircraft Cabin Crew Award 2010 shall be the subject of a hearing before the Full Bench at 10.00am on 16 and 17 December 2019 in Sydney (with video-links on request). The attached directions deal with the filing of evidence and submissions in connection with this hearing. The identified issues concerning the Aircraft Cabin Crew Award 2010 are related to wider issues being dealt with before another Full Bench and are currently the subject of a conferral process being conducted by Commissioner Bissett. Accordingly at this stage the interested parties are directed to report back before me at 9.00am on 22 November 2019 in Sydney (video-links on request).

[11] In respect of the following 33 awards (third category), the parties are directed to continue their discussions and report back at the time, date and place identified in paragraph [10] above:

Airport Employees Award 2010

Aluminium Industry Award 2010

Amusement, Events and Recreation Award 2010

Animal Care and Veterinary Services Award 2010

Architects Award 2010

Banking, Finance and Insurance Award 2010

Business Equipment Award 2010

Car Parking Award 2010

Children's Services Award 2010

Clerks - Private Sector Award 2010

Coal Export Terminals Award 2010

Commercial Sales Award 2010

Contract Call Centres Award 2010

Educational Services (Post-Secondary Education) Award 2010

Fast Food Industry Award 2010

General Retail Industry Award 2010

Graphic Arts, Printing and Publishing Award 2010

Health Professionals and Support Services Award 2010

Legal Services Award 2010

Live Performance Award 2010

Market and Social Research Award 2010

Mannequins and Models Award 2010

Meat Industry Award 2010

Mining Industry Award 2010

Pharmaceutical Industry Award 2010

Plumbing and Fire Sprinklers Award 2010

Poultry Processing Award 2010

Rail Industry Award 2010

Real Estate Industry Award 2010

Salt Industry Award 2010

State Government Agencies Award 2010

Supported Employment Services Award 2010

Travelling Shows Award 2010

[12] It is expected that at the report back on 22 November 2019, the parties will be in a position to identify either that there is an agreement as to the meaning and effect of the current casual overtime provisions (if any) of the awards in the third category or that there is a dispute about a specified issue. The parties may further expect that any disputed issue in an award shall be added to the matters to be resolved at the hearing on 16 and 17 December 2019 referred to in paragraph [10] above.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR713310>

Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards – Overtime for casuals
(AM2017/51)

Further to the Statement of 14 October 2019 in this matter, the following directions are made:

[1] In respect of the awards in the first category, parties are to file a document identifying whether the exposure drafts for those awards reflect the commonly-understood position or, if they do not, any textual changes required to those exposure drafts by 5.00pm on 28 October 2019.

[2] In respect of the awards in the second category with the exception of the Aircraft Cabin Crew Award 2010 ABI & NSWBC and any party supporting its position shall file its written submissions, and any witness statements and other evidence upon which it intends to rely by 5.00pm on 11 November 2019.

[3] Any party who opposes ABI & NSWBC’s position or who proposes an alternate position shall file its written submissions, and any witness statements and other evidence upon which it intends to rely by 5.00pm on 9 December 2019.

[4] ]The issues with respect to the second category of awards, with the exception of the Aircraft Cabin Crew Award 2010 shall be the subject of a hearing before the Full Bench at 10.00am on 16 and 17 December 2019 in Sydney (with video-links on request). Interested parties are required to file their written submissions, and any evidence upon which they wish to rely, by 5.00pm on 6 December 2019.

[5] Interest parties are to report-back on the identified issues concerning the Aircraft Cabin Crew Award 2010 at 9.00am on 22 November 2019 in Sydney (video-links on request).

[6] In respect of the awards in the third category, interested parties are to continue their discussions and report back at 9.00am on 22 November 2019 in Sydney (video-links on request).

[7] All submissions shall be sent to amod@fwc.gov.au in both Word and PDF format.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2017] FWCFB 6417

 2   [2019] FWCFB 6953